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Showing 261 to 280 of 19685 Records
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2015 (12) TMI 1649
Disallowance of business expenditure - treating it as Work-in progress ('WIP') - Held that:- We find that rather the case of the assessee is on better footing as the assessee was carrying out different projects though at the same location, hence it was not a case of single project. Even otherwise the resultant income from the project is a loss even after capitalisation of expenditure by the AO to work in progress. Hence, there is no tax implication, so far as the year under consideration is concerned and the loss otherwise also has to be carried forward. Under such circumstances, it cannot be said that the assessee has adopted the above stated accounting method to avoid tax on income for the year under consideration. The assessee, thus, has followed the accounting method which has been consistently followed by it and which is as per the recognized principles of accounting. In view of the above discussion of the matter and following the above decision of the Tribunal for the sake of consistency, this issue is decided in favour of the assessee.
Chargeability of interest income AO called upon the assessee to show cause as to why the interest income earned on bank F.Ds should not be treated as "Income from Other Sources" - Held that:- The decision of Hon'ble Bombay High Court in the case of “CIT vs. Lok Holdings” (2008 (1) TMI 365 - BOMBAY HIGH COURT) is squarely applicable. In that case the assessee was engaged in development of properties. Advance from customers intending to purchase flats was deposited with the banks in the course of business. The interest income was held to be assessable as business income and not as income from other sources. Following the decision of Hon'ble Bombay High Court in the case of “Lok Holdings” (Supra) the interest income earned from temporary deposits pending their utilization out of customer advances on the booking of flats related to the project of the assessee is assessable as business income. The A.O. is accordingly directed to assess the same as business income. This ground of appeal is also allowed.
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2015 (12) TMI 1648
Entitled to the exemption u/s 80P(2)(a)(i) - Held that:- There is no dispute that the assessee is a co-operative credit society registered under the Karnataka State Cooperative Societies Acct, 1959. The income earned by the assessee during the year is from the activity of providing credit facilities to its members. Therefore, the case of the assessee is covered by the judgment of the Hon’ble jurisdictional High Court in the case of CIT Vs Sri Biluru Gurubasava Pattina Sahakari Sangh Niyamit, Supra [2015 (1) TMI 821 - KARNATAKA HIGH COURT ] wherein held that when the status of the assessee is a Co-operative society and is not a Co- operative bank, the order passed by the Assessing Authority extending the benefit of exemption from payment of tax under Section 80P(2)(a)(i) of the Act is correct. - Decided in favour of assessee
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2015 (12) TMI 1647
Assessment of income of the assessee trust - interest income - Held that:- Interest income was not liable to be taxed as business and profession in the hands of the assessee trust, being a revocable trust. However, such income is to be taxed in the hands of contributors.
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2015 (12) TMI 1646
Can female can be Karta of HUF - rights of female - rights in the co- parcenary property among male and female members - Held that:- The impediment which prevented a female member of a HUF from becoming its Karta was that she did not possess the necessary qualification of co-parcenership. Section 6 of the Hindu Succession Act is a socially beneficial legislation; it gives equal rights of inheritance to Hindu males and females. Its objective is to recognise the rights of female Hindus as co-parceners and to enhance their right to equality apropos succession. Therefore, Courts would be extremely vigilant apropos any endeavour to curtail or fetter the statutory guarantee of enhancement of their rights. Now that this disqualification has been removed by the 2005 Amendment, there is no reason why Hindu women should be denied the position of a Karta. If a male member of an HUF, by virtue of his being the first born eldest, can be a Karta, so can a female member. The Court finds no restriction in the law preventing the eldest female co-parcener of an HUF, from being its Karta. The plaintiff”s father”s right in the HUF did not dissipate but was inherited by her. Nor did her marriage alter the right to inherit the co-parcenary to which she succeeded after her father”s demise in terms of Section 6. The said provision only emphasises the statutory rights of females. Accordingly, issues 5, 6 and 8 too are found in favour of the plaintiff.
In these circumstances, the suit is decreed in favour of the plaintiff in terms of the prayer clause, and she is declared the Karta of “D.R. Gupta & Sons (HUF)”.
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2015 (12) TMI 1645
Refund claim - the CESTAT directed the respondents to remit the amount paid by the petitioner towards service tax and interest under protest, forthwith - Held that: - although there is no stay order passed by the Supreme Court, the refund has not been made to the petitioner for over two years - the respondents are directed to process the refund and to pay the refund due to the petitioner - petition allowed - decided in favor of petitioner.
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2015 (12) TMI 1644
Refund - No supporting document - No revised application of refund - Notification No. 46/94-C.E. - Unjust enrichment - Held that: - It is a settled issue that benefit under a conditional notification cannot be extended in case of non-fulfillment of conditions and/or non-compliance of procedure prescribed therein as held by the Apex Court in the case of Government of India v. Indian Tobacco Association - [2005 (8) TMI 113 - SUPREME COURT OF INDIA]; Union of India v. Dharamendra Textile Processors - [2008 (9) TMI 52 - SUPREME COURT].
Government observes that the point which needs to be emphasized is that when the applicant seeks rebate under Notification No. 46/1994-N.T., dated 22-9-1994, which prescribes compliance of certain conditions, the same cannot be ignored - Government finds that there is no provisions under Rule 18 of Central Excise Rules, 2002 for condonation of non-compliance with the conditions and procedure laid down in the notification allowing rebate under said rule.
Government therefore, holds that the original authority has rightly rejected the claims filed by the applicant for not giving break up of amounts claimed for the respective periods and the provisions under which claim made; non-submission of proper documents; and not following the procedure laid down under Para (ii) and Para (vi) of Notification No. 46/94-C.E. (N.T.), dated 22-9-1998 for the period 18-9-1998 to 15-10-1998 - Application revision rejected.
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2015 (12) TMI 1643
Rebate - Rule 18 of CER, 2002 - The Commissioner (Appeals) vide impugned Order-in-Appeal No. 03-10/Kol-III/2013, dated 15-2-2013 held that as the goods were exempted, any amount which is not payable in terms of Section 3 read with Section 4 ibid does not have the character of duty and were not eligible for rebate under Rule 18 ibid. He ordered the same to be repaid in cash along with interest under Section 11AB ibid.
Held that: - when the goods are absolutely exempted from payment of duty, the assessee cannot pay duty as per Section 5A(1A) proviso wherein it has been provided “that where an exemption under sub-section (1) in respect of any excisable goods from the whole of duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods” - The amount so paid cannot be treated as duty under Section 3 of the Act and therefore, not admissible as rebate under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-1-2004 as Rule 18 authorizes refund of duty only.
Government also observes that C.B.E. & C. Circular No. 423/56/98-CX, dated 22-9-1998 relied upon by the applicant was issued in 1998 and subsequently the Hon’ble High Court of Bombay had delivered above said judgment referred in Para 15.1 which was also upheld by the Apex Hon’ble Supreme Court - Application rejected.
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2015 (12) TMI 1642
Registration under Section 12AA(a) denied - application filed in the Form 10A - Held that:- The assessee had filed application in Form No. 10A alongwith required details. The society is registered from 1998 under the Societies Registration Act. The copy of the society are charitable and activity are genuine. At the time of registration of Trust/Institution, the ld CIT is to be judged the object of the Trust, which should be charitable in nature as the assessee is imparting the education programme through college and school education programme and he also provided various charitable services to the society as per object of the Trust. The case laws relied by the assessee are squarely applicable in the case of the assessee, accordingly, order of the ld CIT is set aside the directed to grant registration from the financial year 2012-13 as per application filed in the Form 10A. - Decided in favour of assessee.
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2015 (12) TMI 1641
Classification - Rebate - Interest - Diesel engines or centrifugal pumps - Held that: - it is observed that while a diesel engine is a compression ignition engine or an internal combustion engine, a centrifugal pump is a pump, driven by a motor/turbine such as an internal combustion engine, for moving liquids such as water. The centrifugal pumps are, as per HSN Explanatory Notes, appropriately classifiable under Tariff Heading 8413 70 - The diesel engines are employed in the composite machines viz. diesel engine driven centrifugal pumps, only to power drive the machine, i.e., centrifugal pumps. Such machines are, therefore, appropriately classifiable under Tariff Heading 8413 70 19 and not 8408 90 90 of the Tariff.
On the issue relating to whether interest is recoverable from the applicant on the rebate paid erroneously to them, Government observes that recoveries of duties not levied or not paid and interest thereof are governed by Section 11A and Section 11AB (now Section 11AA) of Central Excise Act, 1944 - If taxes have been erroneously refunded upon export, they are required to be paid back to the exchequer in the same form as they were received. Further retention of amounts not due to them lawfully has placed the amount in the hands of the applicant and the exchequer must be compensated for such deprivation due to cash rebate taken incorrectly by the applicant. The Commissioner (Appeals) has therefore, erred in holding that no interest is chargeable under Section 11AA ibid on the amount erroneously refunded to the applicant.
Cash rebate of the excess amount paid was clearly not payable to them and has been allowed as recredit in their Cenvat credit account by the Commissioner (Appeals) relying upon the view taken by the Hon’ble Punjab and Haryana High Court in Nahar Industrial Enterprises Ltd. v. UOI reported in 2009 [2008 (9) TMI 176 - PUNJAB AND HARYANA HIGH COURT ] - Revision application are disposed of.
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2015 (12) TMI 1640
Rebate claim - rejection on account of non-production of proper proof of export - Held that: - the export of duty paid excisable goods cleared from factory cannot be established and the lower authorities have rightly concluded that export of duty paid goods is not established in this case - rebate claim is not admissible to the applicant u/r 18 of CER, 2002 read with N/N. 19/2004-C.E. (N.T.), dated 6-9-2004 - revision application rejected.
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2015 (12) TMI 1639
Conversion of free shipping bill to DEPB scheme shipping bill - denial on the ground of time bar - the request for conversion has been filed around 8 months after filing of Export General Manifest - Held that: - The appellant has sought amendment of document (shipping bill) u/s 149 of the Customs Act, 1962. When the appellant has satisfied the requirements of the proviso under Section 149, the Commissioner ought to have allowed the request for conversion instead of disallowing the same by applying the Board’s Circular No. 4/2004. It is also to be stated that Section 149 does not lay down any time limit for seeking amendment of the documents - Though the appellants omitted to declare the DEPB benefit on the shipping bill, they have clearly declared the same in the ARE-1 forms in respect of the said shipping bill. Therefore there was sufficient documentary evidence available at the time of export indicating that the appellants were eligible to avail the DEPB benefit - the rejection of the request for conversion of shipping bills is unjustified - appeal allowed - decided in favor of appellant.
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2015 (12) TMI 1638
Clandestine removal - precipitated calcium carbonate - Revenue's claim that the appellant is engaged in the activity of manufacturing precipitated calcium carbonate which attracts duty and the same has been cleared by the appellant in the guise of calcium carbonate which attracts nil rate of duty thereby evading payment of duty - Held that: - The report of CRCL clearly shows that the samples drawn do not conform to the specification of precipitated calcium carbonate as per IS : 8767-1978. On the said report, no finding has been given by the chemical examiner with regard to classification but clearly stated that these are the samples drawn are not of precipitated calcium carbonate. As it is fact on record, the appellant is manufacturer of lime stone, quick lime powder, calcite which are chargeable to nil rate of duty under CTH 2521 00 90. 2522 10 00 and 2530 90 30 respectively. In that circumstance, without any corroborative evidence, it cannot be alleged that the appellant is only manufacturing precipitated calcium carbonate.
It is alleged that stock of 337 MT of precipitated calcium carbonate and 42 MT of quick lime powder which are not entered in the RG-1 register. We have seen that opening balance on 5-6-2007 as per RG-1 register. As 95 MT, 27 MT, 118 MT, 110 MT and 11 MT of precipitated calcium carbonate and production for the day 5-6-2007 was to be recorded on 6-6-2007 and the same could not be recorded due to visit of DGCEI officers on 6-6-2007 - it cannot be alleged that the seized goods were not entered in the RG-1 regiser - the demand is set aside.
The raw material i.e. lime stone 40000 MT, pet coke 1000 MT and charcoal 1000 MT were also seized. The said quantity has been arbitrarily taken by eye estimation and no verification report/chart prepared and it is not possible to verify the said huge quantity of raw material in a single day - the allegation of non-accountal of goods in the statutory record is not sustainable.
Demand set aside - appeal allowed - decided in favor of appellant.
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2015 (12) TMI 1637
Provisional assessment u/s 18 of CA, 1962 - penalties u/s 114A and 112(a) of Customs Act, 1962 - Held that: - it would appear that the appeal confuses provisional release of seized goods with provisional assessment. Provisional assessment under Section 18 of Customs Act, 1962 is subject to furnishing a bond and appropriate security for payment of differential duty - The suspicion of undervalued imports led to provisional assessment in the present matter. The statute permits recovery of differential duty and interest.
Penalty u/s 112 can be invoked only in relation to goods liable for confiscation. An order of confiscation is not a pre-condition for imposition of penalty. A finding of confiscability suffices for such penal action - The imposition of penalty u/s 112 of Customs Act, 1962 on M/s. Truwoods Pvt. Ltd. is based on such finding.
There is, therefore, no lacuna in the impugned order in not having confiscated the imported goods and in not having quantified a fine for redemption of confiscated goods - appeal dismissed - decided against Revenue.
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2015 (12) TMI 1636
Impposition of penalty u/r 25 - Held that: - none of the ingredients itemized in Rule 25 of the Rules have any application in the present case, justifying imposition of penalty - Though, non-payment of duty within the stipulated time frame is a contravention of the statutory provisions, but in absence of any proof regarding the involvement of the respondent in any fraudulent activity concerning fraud, collusion, suppression, etc., with intent to evade payment of duty, imposition of penalty is not justified - appeal dismissed - decided against Revenue.
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2015 (12) TMI 1635
Denial of benefit of N/N. 21/2002, dated 1-3-2002 (S. No. 200) - classification of goods - Heavy Melting Scrap - The authorities below classified the goods as Rerollable scrap as against declared description of Heavy Melting Scrap - Held that: - the material cannot be rerolled without cutting does not hold much water as they have cited no authority to say that the maximum length of rerollable material cannot exceed 2000 mm. The Commissioner has cited ISRI circular as authority for the size of the heavy melting scrap. The claim of the appellant that they used the material for melting does not hold much water. Firstly it is unsubstantiated and secondly, if the material as imported was rerollable scrap, the use to which it is put after import, does not change its character for assessment at the time of import - appeal dismissed - decided against appellant.
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2015 (12) TMI 1634
Waiver of pre-deposit - Whether the value of brought out items be included in the assessable value of the cooling towers assembled at site - We find that on similar issue involving the same assesse, we have directed to deposit seven half percent of the confirmed duty. Accordingly, the applicant is directed to deposit seven and half percent of ₹ 1,33,68,404/- within a period of eight weeks and on deposit of the said amount, balance dues adjudged would stand waived and its recovery stayed during the pendency of the appeal.
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2015 (12) TMI 1633
Application for Payment of tax at compounded rates - even before the application was accepted and permission granted by the respondents, in June 2015, by virtue of a prohibitory order, the petitioner was constrained to stop his business activities and could not continue with the same. It his case, therefore, that the payment of tax at compounded rates should not be insisted from him for the period subsequent to June 2015.
Held that: - Having exercised his option to pay tax at compounded rates, and the tax having been paid by the petitioner and accepted by the department, the petitioner cannot wriggle out of his obligations under the KVAT Act - while holding that the petitioner would be liable to pay the tax due in accordance with Section 8(b) of the KVAT Act for the assessment year 2015-2016, I permit the petitioner to discharge the tax liability u/s 8(b) of the KVAT Act on or before W.P.(C). No.35496 of 2015 31.03.2016.
Petition disposed off.
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2015 (12) TMI 1632
Whether the Petitioner is not entitled to exemption from tax under Section 6(2) of the Central Sales Tax Act, 1956 on the second inter state sales of goods, since they have failed to prove by producing material evidences? - petitioners claim that there is error apparent committed by the Respondents in not considering the necessary documents filed by the Petitioner, particularly, non consideration of the Form-C declarations - respondents say that after proper inspection and considering the documents available, the impugned order has been passed.
Held that: - the Petitioner can be afforded one more opportunity to submit the documentary evidence to substantiate their case and on such evidence being filed, the same would be considered and appropriate orders would be passed - petition allowed by way of remand.
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2015 (12) TMI 1631
Adjournment seeked - Held that:- In this case, only after the hearing of the admission commenced and after spending sometime on it, an adjournment is sought to find out the fate of the earlier orders of the Tribunal followed by the impugned order.
We make it clear that in case the Revenue does not do the necessary exercise before the appeal comes up for admission and only seek time to carry out the above exercise at time the appeal reaches hearing of admission, no time would be granted. We would be constrained to dismiss the appeal in view of the Revenue not being able to point out the fate of the earlier orders passed by the Tribunal which has merely been followed by the impugned order of the Tribunal.
The learned Counsel for the Revenue is directed to serve a copy of this order on the Principal Chief Commissioner of the Income Tax, Pune. This would enable him to bring it to the notice of all his Officers, so that the above exercise is carried out at the time of filing an appeal or at least before the appeal comes up for admission.
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2015 (12) TMI 1630
Purchase tax - penalty - By Notification No.336, dated 17.09.1964, there is an exemption granted for sales in the canteen run under the statutory obligations - The Petitioner only buys the provisions, cooks and supplies to the MFL employees on subsidise basis - petitioners claim that the purchases were only from the registered dealers and sales tax was not paid, because there was subsidised supply by MFL as a welfare measure and there was no sale to employees and that there was only a catering service - whether the turnover in relation to the sales effected in the canteen run by the Petitioner during the relevant assessment years is exempt from sales tax by reason of the N/N. 336 of 1964, dated 01.09.1964?
Held that: - Under the said notification, the exemption granted is for the sales by all canteens run by an employer or by the employees on cooperative basis on behalf of the employer. The further requirement to be satisfied, before the benefit of that notification can be claimed, is that running of such canteen must be under a statutory obligation without profit motive and the employer should subsidise at least 25% of the total expenses incurred in running the canteen.
Whether the petitioner is coming under the category of a canteen run on co-operative basis or not? - Held that: - the Petitioner is an independent contractor and he is not running the canteen on cooperative basis. Therefore, the Petitioner is not entitled to claim exemption provided under the said notification dated 17.09.1964, as he did not satisfy the essential requirements laid down in the notification for claiming the benefit therefor.
Since the Petitioner doing business has to produce the books of accounts, but the Petitioner did not maintain and produce the same, in the absence of original purchase bills, the Respondent assessed on the basis of the data available and passed the impugned order, the Petitioner is liable to pay tax.
Relying upon the decision of the case of Industrial Catering Services P Limited Vs. Commercial Tax Officer, Chennai [2003 (3) TMI 675 - MADRAS HIGH COURT], penalty set aside.
Petition disposed off - direction to the Respondents to re-examine the question of penalty - decided partly against assessee as regards imposition of tax.
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